Gerton Carriage Co. v. Richardson

This is a motion to punish the defendant for contempt in disposing of $400 in cash, which came to his hands as the proceeds of a public ball given by him in an hotel at Russell, derived from the use of the ball room, and the refreshments more or less inseparable from such occasions. It is claimed that the money was used by him in the payment of debts incurred by him in running the hotel and the purchase of supplies. The defendant contends that the money was not his, but belonged to the estate of his deceased wife. He is executor of that estate, and also receives, by the will of his wife, his support from the rents, profits, and income of the estate, and, if necessary for the purposes indicated, has the right to use the principal. The hotel is a part of the estate. No accounting had been had, and no separation made of the parts necessary for his support, and the heirs, legatees, or devisees of the deceased wife do not seem to care to bring the executor to account. Whatever, therefore, should rightfully flow from the estate by way of income is mixed and mingled with whatever accrues by virtue of his using the property of the estate for business purposes, on the plea that thus alone can the property be preserved intact and its wasting away prevented; for, aside from the amount necessary for his own support, there are fixed charges to be met, such as the interest on $2,500 of mortgages, taxes, insurance and repairs, aside from any possible debts owing by the estate. The extreme process of attachment for contempt should not, of course, lie, unless the óourt, upon the evidence, would make an order requiring the defendant to pay over the money, if in his hands, to the satisfaction of the judgment upon which the supplementary proceedings are based. Supplementary proceedings are not given for the purpose of trying disputed questions of title, or of ousting the common-law and equity courts of jurisdiction to settle such questions by the familiar methods of trial, giving in such cases, as should be given the right to jury trials. These proceedings are designed as in the nature of summary proceedings, to ascertain from the debtor, under oath, what property he may have, and afford a short proceeding for the application of his property to the payment of judgments in cases of clear right. This is in accordance with the general principles of the administration of justice, and is not intended to derogate from the ordinary jurisdiction of the courts, where there is a substantial conflict upon the question of ownership. In such cases the ordinary forms of courts must be invoked. Williams v. Thorn, 70 N. Y. 270 ; Code Civ. Proc.,